Another possible approach could be to take a more relaxed interpretive approach to jurisdiction, so as to encompass NIACs. Kalshoven observed that “almost from day one” the IHFFC was willing, provided that all parties agreed, to operate in a NIAC, and to apply the entire corpus of IHL. Such an interpretation might be possible by reading the provision for ad hoc jurisdiction broadly, so that the phrase “in other situations” includes NIACs, and is disconnected from the restrictions on applicable law. Proponents might also point to Common Article 3 to the Geneva Conventions (which provides for minimum protections in NIACs) as evidence of NIAC jurisdiction, seeing as the IHFFC can investigate serious violations of the “Conventions” as a whole. Yet the rules on ad hoc jurisdiction and applicable law remain part and parcel of AP I, which as a whole only applies in IACs. There is also a paucity of state practice to support a possible extension to the IHFFC’s jurisdiction on the basis of customary IHL.
While in theory it might be possible for the US and Afghanistan to overseas chinese in canada dataconsent to an extended version of the IHFFC’s jurisdiction, and it may represent a valuable opportunity to activate the IHFFC, the states are well within their rights to refuse to do so on the basis that it is at odds with the face of AP I. If the wording of article 90(2)(d) is to be respected, consent from the Taliban as a ‘Party to the conflict’ would also need to be secured. The foreseeable resistance to that suggestion might indicate the extent to which Article 90 was drafted with inter-state conflict in mind.
and which might allay the concerns of MSF, would be for the states to agree to establish an international fact-finding commission composed of well-respected IHL experts, such as those individuals serving as Commissioners of the IHFFC, without invoking the formal credentials of that body. On a practical level, however, consent is unlikely to be forthcoming, possibly because state officials believe that existing investigations are sufficiently robust, but possibly also for the reasons suggested by Professor Kalshoven.